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Page 436.

Fleta, Lib. 2 Cap. 13.

Also Prac.

Reg. 279.

Pref. 10 Rep.

Barrington on the statutes

Westm.

Prim. n. w.

Gloss. Tit.
Cancell.

'Page 293.

equity; the doctrine of arbitrary discretion was destroyed, and the court came to be regarded with approbation and pride, as the useful companion of the free common law.

It is impossible to ascertain when the body of twelve Masters was first established in England. It appears that they were employed as the clerks of the Chancellor in the formation and issuing of original writs; and when a separate court of equity was instituted, they were called upon to assist him in the details of this duty also.(13)

This author says, "that the court is termed a dilatory court, where a suit will last longer than a suit of perpetuanza, into which the poor suitors, coming like a flock of sheep to a bush for shelter, are there more wett than they were in the open field; and yet the bush will not part without a fleece, and out of which they go with the same note they came in, pitifully complaining."

(13) After speaking of the Chancellor it is said in Fleta-" Cui associentur clerici honesti et circumspecti Domino Regi jurati, qui in Legibus et consuetudinibus anglicanis notitiam habeant pleniorem, quorum officium sit supplicationes et querelas conquerentium audire et examinare, et eis super qualitatibus injuriarum ostensarum debitum remedium exhibere per brevia Regis."

They are also called in Fleta Socii et Collaterales, and clerici de prima forma.

Speaking of the writs in the old Register, Lord Coke says-" of these ancient writs I will say, (as Sir Thomas Smith a Secretary of state said) that all the Secretaries in Christendom may learn of them to express much matter in few and significant words."— "Duck in his treatise De Anth. Jur. Civ. says-that he had a conversation with Noy (a great though not a good Lawyer) with regard to the civil laws having prevailed in England; and that it was agreed that the Register of writs, known to be of the greatest authority in our municipal law, was drawn by men thoroughly versed in the Roman Law. If that collection was made by the Masters in Chancery, it is some confirmation of what Strahan informs us, that the reason of their attendance on the House of Lords, was originally to be consulted upon points of the civil law."

Speaking of the Chancellor, Mr. Spelman says "Habet et ordinarious quosdam assessores (sortis admodum inæqualis, sed cancellarios olim et ipsos dictos) numeroque duodecim ut duodenis illis ab Heraclio institutis, et in inferiori imperio usitatis, respondeant; magistros cancellarii nunc appellatos. Assident vero non omnes simul, sed taciti omnes ministerium præcipienti Cancellario exhibituri.

In Hargraves Law Tracts is a treatise written by a Master in Chancery in the time of Sir Thomas Egerton about the year 1600, entitled, "A treatise of the Maisters of the Chauncerie." following particulars are collected from this work.

The

They were formerly created by patent from the King, but since the reign of Edward the 4th, have been appointed by the Lord Chancellor.

In the contest between Lord King and Sir Joseph Jekyll, as to the judicial power of the Master of the Rolls, it was contended on the one side, that, that officer had no other au

σε Touchinge the number of Maisters it appeareth plainlie from Henry Coddington's patent that from all antiquitie, it hath been twelve.

Those only were admitted into the number that had bene brought up and instructed in the court from there youth, and that by the advisement and consent of the king's counsaile in Chancery. Nostri clerici ad robas they are called in 24 Edw. 3. 18 in the yere books, where it is said that the king called unto him his Chancellor, Treasurer, Justices, and Clarkes of robes in the Chauncerie, to know their opinion concerninge a suspicious deed of releas. The reason of which name grew from this that they were robes of the king's gift.

A part of their service is attendinge the higher House of Parliament, whither the comme without Writt as being a part of the same Court.”

He states further that they took precedence in the House of Lords of the king's solicitor and attorney, which precedence was lost by the conduct of a Doctor Barkely, a Master in the reign of Queen Elizabeth.

"One reason of ther attendance is, that the Lords may be informed by the Maisters of the Chauncerie (of which the greater number have alwaises been chosen men, skillful in the civil and canon lawes) in laws that they shall make touching foraine matters, howe the same shall accorde with equitie, jus gentium, and the lawes of other nations."

The author reviews the jurisdiction of chancery arising from use or statutes in a variety of cases, maritime, martial, or ecclesiastical, which as he says, "were to be expedited not in cours of common lawe, but in course of civil and canon lawe, and it was necessary to assist the Lord Chancellor with some learned in this lawe."

By statute 5th Geo. 3d, Cap. 28. £200 per annuin is to be paid Prac. Reg. out of the general cash in the bank belonging to suitors of the 280. court, to each of the eleven Masters. They before received a salary of £100, out of the Exchquer, besides robe money paid in place of the robes formerly furnished to them.

They have regular charges for services rendered, under a fee Beames' O bill, settled by Lord Hardwicke.

ders 372.

Two or three of the Masters sit in term with the Lord Chan- Pract. Reg. cellor, and two when he sits out of term. When the great seal 279. is put in commission or a judge sits for the Lord Chancellor two Masters are associated, and it appears that a decree cannot be made without their assent.

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Upon hearing of the cause Mr. Baron Atkyns would have Merritt v. dismissed the bill, but Sir Samuel Clarke, Sir Miles Cooke, and Eastwicke, Sir William Beversham, the Masters in Chancery, stood up and 1 Vernon, opposed it, being of opinion, that there ought to be relief and a 265.

C

Shapland v.
Smith, 1 Br.

C. C.,77.

thority than what he received by delegation from the Lord Chancellor, or by special commission from the crown, and that in the early period of the court, he received such delegated authority in common with the other eleven Masters, alWhether this though more frequently, from being the chief.

position was established or not, it is certain, that the Masters were frequently intrusted by the court with the hearing of causes, sometimes to be finally decided by them, but generally to end and determine the matter if they could, if not, to report to the court.(14)

When Lord Bacon received the Seals, he checked references of this nature. In his speech to the court on taking his place, he said that he had taken a resolution concerning the communicating the authority of the Chancellor too far, and making upon the matter too many Chancellors, by relying too much upon the reports of the masters as concludent. I know the Masters in Chancery are reverend men, and the great mass of business in the court cannot be sped without them, and it is a thing a Chancellor may soon fall into for his own case to rely too much upon them.”(15)

By his 47th order he provided, that, no reference should be made to any of the Masters of the court, or any other commissioner to hear and determine, where the cause has gone so far as the examination of witnesses, except in the special cases mentioned.”(16)

decree for the trust, and thereupon the court being divided, no order was made."

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Upon exceptions to a Master's report against a title, Baron Eyre, sitting for the Lord Chancellor, was in favour of the exceptions. Master Holford concurred and Master Hett was against them.

Baron Eyre seeming doubtful whether it was necessary the opinion of the Masters sitting with the Judge must concur with his, in order to found a decree, the case stood over to be reheard by the Lord Chancellor, who agreed with Master Hett."

See also the remarks upon Smith v. Turner, 1 Vernon 274. in Legal Judicature in Chancery stated page 177. Also Cavendish v. Mercer, Ibid, 175. and Lord Nottingham's opinion, Ibid, 173, 174. and the entry in Merritt v. Eastwich, Ibid, 180.

(14) See numerous instances in Legal Judicature in Chancery stated page 84, 85, 86. note. They occur principally in the reigns of Edward 6, Elizabeth, and James 1st. Similar examples at an earlier period may be found in Hargraves Law Tracts page

307.

(15) Legal Judicature, &c. page 91.
(16) Beames' Orders, page 23.

The earliest ordinances for the government of the court now extant, were passed in the reign of Richard 2d, at which time the prevalence of uses, and the invention of the subpoena, enlarged the business, and originated the present forms of the court. These ordinances were amended in the time of Henry 5th, and subsequently.

By the 16th ordinance, one of the twelve ordinary Masters present in court might, even in the absence of the Lord Chancellor, do every thing except giving definitive sentence. (17) Even at the present day, they occasionally exercise a judicial power in the court. There is a standing commission to the Puisne Judges and the Masters, authorizing them, or any three of them, of whom a Judge must be one, to hold the court in case of the absence of the Lord Chancellor, from sickness or other cause. and two Masters to sit. may overrule the Judge, out them. (See end of note 13.)

Under this it is usual for a Judge They are equal in the commission, and a decree cannot be made with

The public honors, attached in the early days, to the office were proportionate to the importance of its duties. The Masters took precedence of the Serjeants at law, and the King's Solicitor and Attorney General; which rank it appears they were deprived of in the reign of Elizabeth. At present they rank next to these officers.(18) They attended the House of Lords without writ, as part of the court, and it is supposed principally to assist as to laws relative to foreign matters, for which their skill in the civil and canon law qualified them. At the present day two of the Masters attend the House every day; and on the trial of a Peer, or of any person impeached by the House of Commons, all of them attend.

As to their appointment, they were anciently created by the King's patent, and it is a singular circumstance, that the tenure of their office was generally during good behaviour, while that of the Judges continued to be during pleasure, until the 13th William 3d.

In the tract called Discourse of the Judicial Authority of the Master of the Rolls, written by Lord Hardwicke, there are three of these patents, stated at length, two of which in

(17) Legal Judicature, page 78.

(18) Report of Commissioners on Courts of Justice, 1816,

the reign of Henry 4th, run-" habendum et occupandum dictum officium quamdiu bene et fideliter se gesserit in eodem."

At what period the alteration was made is uncertain, but it was done before the time of Elizabeth, as it is said in the treatise of the Maisters of the Chauncerie," that their offices are in the gift of the Lord Chancellor."

That this power has been well exercised may be concluded as well from the instances of eminent counsel taken from the bar to fill the office, as from the ability which the books exhibit in the reports of the Masters. In the great case of Scott v. Tyler, before Lord Thurlow, (2 B. C. C. 431.) two of the counsel employed, Mr. Alexander and Mr. Stratford, were afterwards appointed Masters. Every equity lawyer is acquainted with the legal acquisitions and accuracy of Mr. Cox. The Masters receive in salaries, and allowances from the crown, about £700 sterling per annum, independent of the emoluments of their business.(19) In our own country, the state of South Carolina has adopted the Chancery system. The organization of the court with respect to Masters is the following. In each of the districts into which the state is divided, a commissioner is appointed by the Governor, holding his office during good behaviour, who unites the duties of Master and Register. It appears that in the Charleston district (where the court sat previous to the division of the state) there was but one Master before the year 1815, and an act of the General Assembly was passed that year, reciting the inconvenience, by reason of the increase of the business of the court, and authorizing the appointment of a commissioner to perform all the duties incident to the office of Master. The Judge of the district is directed to apportion the business between them.

The duties of a Master in Chancery are stated at large, in a report of the commissioners on Courts of Justice made to the British House of Commons in the year 1816. It is there observed," that it would be impossible to specify every head of reference, because they are almost as numerous as the Matters subject to the jurisdiction of the court,-but that the following most frequently occur.-To examine into any alleged impertinence or scandal in a bill or answer, and into the sufficiency of any answer or examination.-To examine as to

(19) Ibid.

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